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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD (LUCKNOW BENCH)
JASPREET SINGH, J.
Ram Asrey & Others - Appellant
Versus
Ram Jeet Dubey & Another - Respondents
Second Appeal No. 138 of 1982
Decided on : 23-03-2021
Second Appeal - Dismissal of suit - Adverse possession - Possessory title - Proof of - Orders passed under the consolidation operations - Courts below in not considering the fact that no custom having been established or proved by the defendant-respondents to the effect that notwithstanding the marriage the widow will continue rights over the property of her former husband, could hold the sale deed valid ? Possessory title of the plaintiff , the predecessor-in-interest of the plaintiffs-appellants the findings recorded as such stand vitiated ?Plea of adverse possession specifically having been taken a specific issue having been framed to that effect - no issue having been framed to the effect that there was any family custom whereby the remarried widow will continue her rights over the property of her husband and non-framing of issues causing serious prejudice to the plaintiff's case, the findings recorded by the Courts below stand vitiated? possessory title over the property - Courts below in not decreeing the suit of the plaintiffs and in not considering their rights on the basis of their possessory title -(VII) Whether the Courts below in not considering the fact that the house being ancestral and Dwarika father of the appellant no. 1 having been found to be nephew of Nohar at any rate the plaintiffs will not get right over the property in dispute at least to the extent of half share?
Finding of the Court:
Two Courts below have proceeded on the premise that Smt. Sughari had re-married with Jhinnu. In order to arrive at the aforesaid conclusion though the oral evidence as well as the evidence on the point of Ghar Baithwa Customary Marriage did not find favour with the Trial Court, however, it relied upon a decision rendered by the Consolidation Authorities wherein there was a mention regarding Smt. Sughari being the wife of Sri Jhinnu. Though, this finding was returned by the Trial Court, however, while the first appeal was filed by the plaintiff, the defendant whose specific case was that Smt. Sughari had not re-married did not file any cross appeal to assail the aforesaid finding. The aforesaid finding regarding re-marriage even though based on scanty evidence, yet the same having not been assailed, this Court is not inclined to permit the defendants to raise the aforesaid plea at this stage in exercise of powers under Section 100 C.P.C. to put the plaintiff in an even worse situation than he already is in.
Thus, it would evolve that upon the death of Nohar, his property would be inherited by his widow Smt. Sughari and Smt. Lalli who is said to be the daughter. Upon the re-marriage of Smt. Sughari with Jhinu in terms of Section 2 of the Hindu Widows Re-marriage Act, 1856 and The Hindu Women Rights to Property Act, 1937 she would lose her right in the property of her earlier husband.
No evidence contrary to the aforesaid document. The relationship of Smt. Lalli and Nohar has further been corroborated by producing Sri Bukkal, the husband of Smt. Lalli who stated that Smt. Lalli was the daughter of Smt. Sughari and Nohar. This statement has been relied upon by both the two Courts below and have recorded their findings that Smt. Lalli is the daughter of Sri Nohar and Smt. Sughari. This being a finding of fact, this Court is not inclined to interfere or upset the same merely because another view may be possible.
Thus, the effect would be that even though Smt. Sughari lost her right of widow's estate upon re-marriage and thereupon the daughter Smt. Lalli being the nearer heir would succeed having right and title to the property to the widow's estate. Smt. Lalli thus being the owner and as she executed the sale deed in favour of the defendants thus right of Smt. Lalli to execute the sale deed is upheld and this view has also been taken by the Lower Appellate Court. This Court does not find any perversity requiring any interference from this Court
Where a party pleads adverse possession then it has to be specifically pleaded. Evidence has to be properly led. In the instant case, the basic ingredients which are required to be pleaded for adverse possession have not been pleaded. It would be noticed that a bald plea stating that the plaintiff is in possession has perfected his rights by adverse possession has been made. It has not been averred as to who was the actually owner against whom the possession is being claimed to be hostile and adverse. It has also not been pleaded as to when the plaintiff came in possession so that he has matured his rights as provided in Article 65 of the Limitation Act, 1960.
The trial court did not frame an issue as to the defendants perfecting title to the suit property by adverse possession. The defendants did not produce any evidence in support of the plea of adverse possession. It is not the case of the defendants that they were misled in their approach to the case. It is also not their case that they were denied opportunity to put forward their evidence. It is, therefore, not proper for us at this stage to remand the case to enable the defendants to make good their lapse."
Result: Second Appeal dismissed
JUDGMENT :
1. This is the plaintiff's second appeal against the concurrent judgments and decree passed by Munsif, Akbarpur, District Faizabad in a Regular Suit No. 191 of 1976 whereby the suit of the plaintiff was dismissed which was carried forward before the Lower Appellate Court in Civil Appeal No. 288 of 1979 which was also dismissed by means of judgment and decree dated 16.01.1982 passed by the District Judge, Faizabad.
2. Being aggrieved against the aforeasaid judgment and decree, the instant second appeal was preferred which was admitted by this Court by means of order dated 26.03.2014 on the following substantial questions of law as which are being reproduced hereinafter for ready reference:
(II) Whether the courts below in not considering the possessory title of the plaintiff and Dwarika, the predecessor-in-interest of the plaintiffs-appellants the findings recorded as such stand vitiated ?
(III) Whether the plea of adverse possession specifically having been taken a specific issue having been framed to that effect, the courts below in not considering the valuable plea and valuable rights accrued to the plaintiffs on account of adverse possession had any right and in the alternative the findings stand vitiated ?
(IV) Whether the specific plea and evidence having been led to the effect that immediately after the death of Nohar, Smt. Subra remarried and migranted to other village and started living with her subsequent husband and also no evidence of possession having been led or established with respect to Smt. Lalli, the Courts below in not accepting the position of the plaintiffs and Dwarika, predecessor-in-interest of the plaintiffs, the findings stand vitiated?
(V) Whether no issue having been framed to the effect that there was any family custom whereby the remarried widow will continue her rights over the property of her husband and non-framing of issues causing serious prejudice to the plaintiff's case, the findings recorded by the Courts below stand vitiated?
(VI) Whether the plaintiffs having been established their possessory title over the property in dispute and at any rate the plaintiffs having matured their rights on the basis of possession. The Courts below in not decreeing the suit of the plaintiffs and in not considering their rights on the basis of their possessory title could dismissed plaintiff's suit?
(VII) Whether the Courts below in not considering the fact that the house being ancestral and Dwarika father of the appellant no. 1 having been found to be nephew of Nohar at any rate the plaintiffs will not get right over the property in dispute at least to the extent of half share?
Factual Matrix:-
Before adumerating the substantial questions of law, brief facts giving rise to the instant second appeal are being noted first:
3. One Sri Dwarika instituted a suit for permanent injunction against Ramjeet, Abdul Kalam and Ram Sunag Singh which was registered as R.S. No. 191 of 1976. It was pleaded that the property in question was ancestral of which the plaintiff was in possession. It was further pleaded that the defendants on the basis of an alleged sale deed having got exected from one Smt. Sughari widow of Nohar and Smt. Lalli (alleged daughter of Sri Jhinnu and Sughari) were attempting to interfere in the peaceful possession of the plaintiff.
4. It was specifically pleaded that the property in question initially belonged to one Sri Nohar who was the cousin uncle (chachere chacha as pleaded in para 3 of the plaint). Upon death of Sri Nohar (about 28
Adverse possession - Right of widow after remarriage - Daughter of widow being nearer heir would succeed right and title to the property of widow - Nald plea stating that the plaintiff is in possessi....
The plaintiff, as the daughter of Bhagmat, retains her inheritance rights over property despite her mother's remarriage, confirming the applicability of old Hindu law over Scheduled Tribes.
Succession to the property inherited by a widow as life-estate holder opens on her death and is governed by the provisions of Section 8 of the Hindu Succession Act, 1956, irrespective of the date of ....
The court affirmed that children of a deceased woman inherit her estate under the Hindu Succession Act, irrespective of their birth order, unless adoption is proven, as the mother's remarriage does n....
A widow loses her rights in her deceased husband's property upon remarriage, and a plaintiff must independently establish ownership and possession to succeed in a claim for injunction.
A female Hindu retains absolute ownership of her inherited property despite remarriage, and her children from a subsequent marriage are entitled to inherit such property.
Section 8 of the Act reads as continuity of tenancy shall not be affected by - the death of the landlord, or the death of the tenant, except when the tenant leaves no male lineal descendants or mothe....
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